Previous, intelligent critiques of judicial review have assumed — and, in fact, relied upon — the idea that the majority would deal fairly with the minority. Jeremy Waldron:
I assume that there is a strong commitment on the part of most members of the society we are contemplating to the idea of individual and minority rights. . . . They believe that minorities are entitled to a degree of support, recognition, and insulation that is not necessarily guaranteed by their numbers or by their political weight.
Today, that starry-eyed ideal took another beating, as all Republican Senators, plus one Democrat (two, if you count Sen. Reid’s clearly procedural vote), prevented even the opening of debate on the defense appropriations bill that would have both repealed Don’t Ask Don’t Tell, and ended the practice of “secret holds.” Politico criticizes the likely advocate’s reaction: self-help, through the courts.
This, though, is now the only answer. By blocking repeal, the Senate stands in the way of a growing, supermajority consensus that servicemembers should be allowed to serve openly, even though standing against repeal is no longer rational. Logically, legally, or politically. And yet, we can add this to the growing list of things that can’t be accomplished, given a force of mindless obstructionism.
If the legislature won’t secure the people’s rights, the courts will. They’ve already started down that path (pdf). That’s why they’re there.